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Sixth District Finds “Substance and Effect” of “Preemptory Writ of Mandate” Decision A Final Judgment for Purposes of CEQA Appeal

Monday, December 17th, 2018

In Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista, (2018) 29 Cal.App.5th 424, the Sixth District Court of Appeal held that the “substance and effect” of a decision labeled by the trial court as a preemptory writ of mandate nonetheless constituted a final judgment.

The City of San Juan Bautista (City) approved a gas station, convenience store, and fast food restaurant (Project) and related permits with a mitigated negative declaration (MND). Alliance of Concerned Citizens Organized for Responsible Development (ACCORD) filed suit.

ACCORD alleged that the City violated CEQA by not preparing an EIR for the Project.  ACCORD also alleged that the Project conflicted with the City’s General Plan and that, in approving the Project, the City violated state planning and zoning laws, its own zoning code, and its municipal code.

In March 2016, the trial court issued a “Preemptory Writ of Mandate of Interlocutory Remand for Reconsideration of Potential Noise Impacts,” which directed the City to take specific action and then file a return to the preemptory writ no later than October 10, 2016. ACCORD did not appeal that decision. The City filed a return to the writ within the timeframe provided, and then a supplemental return advising the Court of the City’s compliance with the Writ.  In December 2016, the trial court issued a subsequent decision finding that the City had complied with the terms of the preemptory writ. ACCORD timely appealed this decision alleging that the City was required to prepare an EIR because there was substantial evidence of a fair argument that the Project would have noise and traffic impacts and the Project violated the City’s municipal code governing formula retail businesses.

In determining whether the issues raised on appeal were cognizable, the Appellate Court first considered whether the March 2016 decision was a final judgment, notwithstanding its title labeling it as an “Interlocutory Remand.” The Court reasoned it “is not the form of the decree but the substance and effect of the adjudication which is determinative” of whether it is a final judgment. “[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final.” Because “[t]he March 2016 decision disposed of all CEQA and non-CEQA issues raised by the petition and conclude[d] that respondents had not complied with CEQA with respect to the potential noise impacts of the project  . . . [t]he decision was not tentative or partial.”

The Court found that the March 2016 decree described specific instructions for the City to follow and the means for the City to comply with the Writ. It was inconsequential that additional proceedings were required as “a trial court has continuing jurisdiction to ensure compliance with a preemptory writ of mandate” and the scope of these proceedings was limited to whether the City complied with the decree. The trial court’s subjective intent was also inconsequential to the effect of the Court’s decision. It did not matter that the trial court titled the March 2016 decree an interlocutory remand and declared “nothing herein shall be construed as a final judgment,” the effect of the decree disposed of all issues raised by the petition thus, it was a final judgment.

The final judgment rule provides that an appeal may only be taken from the final judgment in an entire action; piecemeal disposition and multiple appeals in a single action are oppressive and costly. Here, the Court established that, in finding a final judgment, a court does not focus on the decision title or intent of the deciding court in issuing the decision but the “substance and effect” of the decision. Where the decision concludes matters between the parties, it is a final judgment for the purposes of an appeal.

ACCORD alleged that the March 2016 decision was an interlocutory remand and therefore unappealable, as discussed in Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499. In Voices, the California Supreme Court held that Code of Civil Procedure section 1094.5 does not impose an absolute bar on interlocutory remands in administrative mandamus actions. In a concurring opinion, Justice Werdegar, joined by Chief Justice Cantil-Sakauye, recognized the limited scope of the court’s decision and indicated that an interlocutory remand is not proper in a CEQA action. The California Supreme Court has not since decided the propriety of an interlocutory remand in a CEQA action. Here, the Court did not answer whether the Voices holding applied to CEQA actions pursuant to Public Resources Code section 21168.9 as “in substance and effect the March 2016 decision was a final judgment.” As such, the December 2016 decision was a post-judgment order.

ACCORD could not challenge the adequacy of the EIR as the group failed to timely appeal the March 2016 decision within the 60-day statutory deadline. ACCORD alleged that principles of fairness and due process support the grant of an extension. The Court held that it is immaterial that the trial court mislabeled the March 2016 decision and possibly mislead the parties, the Court is without statutory authorization to extend the time for appeal “even to relieve against mistake, inadvertence, accident, or misfortune.” Further, the timeline may not be extended by stipulation by the parties, estoppel, or waiver. Indeed, where no objection is made, a court “must dismiss the appeal of its own motion.”

Considering the above, the Court found the scope of its review limited to the December 2016 post-judgment order. The City’s response to the preemptory writ was adequate where it satisfied the conditions of the preemptory writ and timely filed a return on the preemptory writ.

The Court affirmed the trial court’s December 2016 holding.

Key Point:

Where a court’s decision disposes all issues raised by the petition, it is a final judgment from which an appeal must be filed within 60 days.

An appeal from a post-judgment decision limits the appellate court’s scope of review to only those issues addressed in the post-judgment decision, not the original judgment.

Categorical Exemption Applies to Single Family Residence Project on Demolished Historical Resource Site

Tuesday, September 18th, 2018

In Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, the Fourth District Court of Appeal held that the City of San Diego (City) violated CEQA where it refused to rely on a categorical exemption and instead required that an EIR be prepared for a single family residence project (Project) on a vacant lot. Invoking the unusual circumstances exception, the City rejected the categorical exemption based on adverse impacts to a historical resource.  Earlier, the project applicant/property owner had lawfully demolished the Victorian-era cottage on the Project site. The Court concluded it was improper for the City to conduct retroactive environmental review premised on the cottage’s existence, and established that the baseline was the Project site without the cottage.

In 2011, the Bottini family bought the Project lot, the cottage on the site, and acquired the rights to a pending historical resource nomination in front of the City’s Historical Resources Board (Board). The Bottinis withdrew the nomination and asked the Board to issue a determination on the cottage’s eligibility for a historic designation. The Board initially found that the cottage ineligible for listing because the cottage had undergone too many alterations to meet applicable criteria. Following a public hearing and receipt of public comments, the Board declined to grant the cottage historical status. Local groups appealed this decision but those appeals were dismissed as untimely.

Later that year, the Bottinis requested that the City’s Neighborhood Code Compliance Division determine that the cottage was a nuisance under the City municipal code. The Division determined the cottage was uninhabitable to the point that no one should be allowed to occupy it and found it was a public nuisance in accordance with criteria set out in the City’s municipal code. As such, it was required to be demolished. The Bottinis bulldozed the cottage leaving an empty lot in its place.

In 2012, the Bottinis applied for a coastal development permit (CDP) to build a single-family home. City environmental staff determined the Project was categorically exempt from CEQA review as a new residential construction on a vacant lot. The La Jolla Community Planning Association and La Jolla Historical Society appealed the decision. The City Council, despite being informed by staff and the City Attorney that the Bottinis had followed the municipal code, remanded the project to the Planning Department to evaluate the Project with a January 2010 baseline—before the Bottinis owned the property and the cottage was demolished. The City Council further concluded that the Project was not categorically exempt from environmental analysis because, with the new baseline, the Project would have a significant effect on the environment due to unusual circumstances and adverse changes to a historical resource. The Bottinis filed suit alleging, among other things, that the City violated CEQA in this determination.

The trial court held that the Project was the construction of a single family home, not the demolition of the cottage. The trial court further determined that the baseline should have been set at the point when the application was submitted and the lot was vacant. On that basis, the trial court found the City abused its discretion in concluding the Project was not categorically exempt from CEQA review. The City appealed this decision.

The Appellate Court first addressed baseline standards as they apply to CEQA; “the baseline ‘normally’ consists of the physical environmental conditions in the vicinity of the project, as they exist at the time … environmental analysis is commenced.” Here, the already-demolished and non-existent cottage was not part of the existing conditions that would be affected by the Project. The Court also concluded that the Bottinis’ demolition of the cottage was permitted by the City’s municipal code.

The Court then held that a “project” for the purposes of CEQA is the “whole of an action” and may not be segmented to avoid review. With this in mind, the demolition permit was still a separate project because it served a separate purpose than the Project—to preserve the health and safety of the City by removing a nuisance. Neither the demolition permit nor the Project application referred to or relied on one another.

The Court highlighted that all parties conceded that the City’s issuance of the demolition permit is a ministerial action not subject to CEQA. CEQA specifically provides that it only applies to discretionary projects—projects over which the lead agency may influence the plans and environmental impacts. The demolition permit was therefore outside the scope of the City Council’s CEQA review.

Finally, the Court established that no exception to the categorical exemption applied here. With properly defined Project parameters and a properly considered Project baseline, it was clear that substantial evidence did not support the City Council’s conclusion. There was no historical resource to be affected and no unusual circumstances making the categorical exemption improper.

Considering the above, the Court affirmed the trial court’s holding.

Key Point:

A categorical exception is properly applied to a single family home construction project where a historical resource on the site has been demolished prior to project application.

Fourth District Court of Appeal Upholds Issue Sanction for Misuse of Discovery Process, Obscuring Identity of Parties Sought for Deposition

Thursday, February 8th, 2018

In Creed-21 v. City of Wildomar (2017) 18 Cal. App. 5th 690, the Fourth District Court of Appeal held that the trial court did not abuse its discretion in imposing an issue sanction against Plaintiff Creed-21 (plaintiff) on standing, which terminated the action, for the misuse of the discovery process in response to a motion for sanctions pursuant to Code of Civil Procedure section 2023.030 filed by Real Party in Interest Wal-Mart Real Estate Business Trust (Wal-Mart).

At trial, Wal-Mart repeatedly attempted to set a deposition and to obtain corporate documents from plaintiff in order to investigate plaintiff’s standing to bring the CEQA lawsuit. Wal-Mart’s first notice of deposition of the plaintiff’s local person most qualified (PMQ) to appear for the deposition was issued in August of 2015.  Plaintiff did not respond to the notice or the follow-up meet and confer letter sent by Wal-Mart.  Wal-Mart set a second deposition in October of 2015.  Plaintiff refused to have its PMQ appear and Wal-Mart filed a motion to compel. Thereafter, the identity of the PMQ was acknowledged to be the president of the plaintiff-company, a non-local individual.  In response to the motion, the trial court ordered plaintiff produce the PMQ for the deposition and issued $3,000 in sanctions against the plaintiff.

Plaintiff did not comply with the order by either producing the PMQ or paying the sanction. Plaintiff instead sought relief from the order, which was denied.  Plaintiff was ordered to participate in a deposition on February 8, 2016.  Plaintiff again failed to comply with the order, but urged its failure to participate in the deposition on February 8, 2016, was based on a family emergency impacting one of its attorneys.  The trial court was unpersuaded.

Wal-Mart filed a motion for sanctions, which the trial court granted based on the plaintiff’s consistent refusal to comply with the court orders on discovery. The trial court issued a terminating sanction in light of the fact that its prior issuance of monetary sanctions and two court orders did not result in the plaintiff complying with discovery rules.

The court held the trial court did not abuse its discretion when it issued a terminating sanction. The court explained that the discovery statutes evince an incremental approach to discover sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  The trial court properly followed the progression in issuing sanctions in the case.

The court also rejected plaintiff’s claim that a terminating sanction could not be issued without a showing of bad faith. The court concluded that no decision rendered after the Civil Discovery Act of 1986 was enacted supported plaintiff’s argument.

Key Point: 

Compliance with opposing counsel’s motions and court orders are imperative in prevailing in CEQA suits. Failure to comply, and attempts at obfuscating the identity of parties required for discovery without good reason may result in issue sanctions.

Second District Court of Appeal Upholds Decertification of Portion of Contested EIR on Remand

Thursday, February 8th, 2018

In Center for Biological Diversity v. California Dept. of Fish & Wildlife (2017) 17 Cal. App. 5th 1245, the Second District Court of Appeal addressed a challenge to the postremand judgment involving the Newhall Ranch Project issued by the trial court in response to Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 and Center for Biological Diversity v. Department of Fish and Wildlife (2016) 1 Cal.App.5th 452.  Following the terms of the remand, the trial court entered judgment in favor of the plaintiffs on two issues: the analysis of greenhouse gas emission and stickleback impacts. Judgment was rendered in favor of the California Department of Fish & Wildlife (department) and the developer as to all other issues.

The judgment further ordered that a peremptory writ of mandate be issued directing the department to decertify the portions of the EIR that address the significance of the project’s greenhouse gas emissions, and the validity of the stickleback mitigation measures. The judgment stated: “Consistent with the Supreme Court’s opinion, all remaining portions of the EIR comply with CEQA.” Accordingly, the writ directed the department to void certification of portions of the EIR that address the department’s determination regarding the significance of the project’s greenhouse gas emissions and the stickleback mitigation measures.

The judgment and writ also enjoined all project activity including construction until the EIR was compliant with law. Further, the department also was ordered to “suspend” two project approvals that related directly to the EIR’s determinations regarding the significance of the project’s greenhouse gas emissions and stickleback mitigation measures, but four other approvals were left in place because no action was needed as to them “unless compliance with the Writ changes or affects” them.

Plaintiffs appealed from the trial court’s judgment on remand, arguing that the trial court’s decision to decertify only a portion of the EIR and leave some of the project approvals in place violated CEQA. The court rejected plaintiffs’ challenges to the postremand judgment.

First, the court explained that Public Resources Code section 21168.9, subdivision (a) clearly allows a court to order partial decertification of an EIR following a trial, hearing, or remand. The section applies when a court finds that “any determination, finding, or decision of a public agency” is noncompliant. (Pub. Resources Code § 21168.9, subd. (a).) After making such a finding, “the court must enter an order, in the form of a peremptory writ of mandate, containing one or more of three specified mandates. (Pub. Resources Code § 21168.9, subds. (a) & (b).) One of those three mandates is voiding the agency determination “in whole or in part.” (Pub. Resources Code § 21168.9, subd. (a)(1).) When a court voids an agency determination “in part,” it must make severance findings pursuant to Public Resources Code section 21168.9, subdivision (b), to determine whether the voided portions are severable, and whether the remainder will be in full compliance with CEQA. In reaching its holding, the court distinguished LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675 and Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 on the basis that in those cases the courts did not make the severance findings required under Public Resources Code section 21168.9, subdivision (b).

Second, the court rejected plaintiffs’ argument that it was improper for the trial court to leave some project approvals in place. The court explained that under Public Resources Code section 21168.9, subdivision (b), the court is required to order “only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division.” Thus, if the court finds that it will not prejudice full compliance with CEQA to leave some project approvals in place, it must leave them unaffected.

Finally, the court reviewed the severability findings made by the trial court to confirm whether the court properly exercised its authority. Applying the abuse of discretion standard, the court concluded the trail court’s severability findings satisfied Public Resources Code section 21168.9, subdivision (b).

Key Point:

When examining inadequate portions of an EIR, Public Resources Code section 21168.9, subdivision (b) allows courts to determine whether the inadequate and voidable portions are severable, and whether the remainder will be in full compliance with CEQA.

Second District Court of Appeal Upholds Interlocutory Remand in Shopping Center Project Challenge, Clarifies General Plan Relationship with Projects

Monday, July 31st, 2017

In The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, the Sixth District Court of Appeal affirmed the trial court and upheld the County’s approval of a shopping center proposed by Omni Resources LLC (“Omni”), known as the Corral de Tierra Neighborhood Retail Village (“Project”).

The Project, proposed for construction on eleven acres of land located at the intersection of Highway 68 and Corral de Tierra Road in Monterey County, consists of ten retail buildings, including a grocery store, a two-story office building, and other retail spaces for a sporting goods store, bank, florist, mail store, post office branch, or a barber/beauty salon.

After the Board of Supervisors certified an EIR and approved the project in February 2012, the plaintiff sued the County, alleging failure to comply with CEQA. The trial court rejected the plaintiff’s claims of CEQA violations, but issued an order of interlocutory remand to allow the County to clarify whether the Project was consistent with the County’s general plan requirement that the Project have a long-term, sustainable water supply.

On remand, the Board adopted a resolution finding that the Project was consistent with the County’s general plan. In March 2015, the plaintiff filed its opening brief, contending that the County violated both CEQA and procedural due process during the remand proceedings. In 2015, the trial court again held for the County and Omni.

In the published portion of the opinion, the court rejected the plaintiff’s argument that the trial court erred in issuing an interlocutory remand. According to plaintiff, where an agency abused its discretion, the only allowable procedure, as provided by Public Resources Code (“PRC”) section 21168.9, was an order compelling compliance with CEQA. The court found that the mandate procedures in PRC section 21168.9 did not apply because the issue of whether a proposed project was consistent with a county’s general plan was not a CEQA issue. Citing Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499, the court concluded that the trial court’s choice to issue an interlocutory remand was eminently practical and well within the court’s inherent power. Because there was a single, discrete non-CEQA issue of general plan consistency that required clarification before the County’s approval of the Project could be upheld, the court concluded interlocutory remand was proper in this case.

The court rejected the plaintiff’s contention that the EIR failed to analyze whether the project was consistent with the County’s 2010 general plan. The court found that, although CEQA requires an analysis of general plan inconsistency, CEQA does not require an analysis of general plan consistency. The court also rejected the plaintiff’s argument that the County’s finding on interlocutory remand that the project was consistent with the County’s general plan and had a long-term sustainable water supply was not supported by substantial evidence.

Key Point:

The Sixth District Court of Appeal found that PRC section 21168.9 addresses CEQA issues, and is not applicable to an inquiry into whether or not a proposed project is consistent with a county’s general plan. The Court also held that interlocutory remand is proper where there is a single, discrete, non-CEQA issue of general plan consistency that the trial court determined required clarification before approval of a proposed project.

Second District Court of Appeal Rejects Challenge to CEQA-Exempt Lighting Project on Procedural Grounds

Thursday, April 13th, 2017

In The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, the Second District Court of Appeal addressed an appeal centered on challenge to the City of Los Angeles’ lighting project, and held that plaintiff’s attempt to invoke Code of Civil Procedure (“CCP”) section 473, subdivision (b) was improper due to insufficient evidence.

In September 2014, the plaintiff challenged the approval of a City of Los Angeles’ bureau of street lighting project’s use of light emitting diode replacement lights, which the City claimed was exempt from formal environmental review under CEQA. The plaintiff failed to lodge the administrative record as required pursuant to a stipulation. On July 8, 2015, the trial court denied the plaintiff’s request for a continuance because the record had not been lodged. The trial court also denied the plaintiff’s petition and complaint because the plaintiff could not support its arguments due to its failure to lodge the administrative record.

On August 26, 2015, the plaintiff moved to vacate the judgment under CCP section 473, subdivision (b), asserting that both discretionary and mandatory relief should be granted based on its attorney’s sworn affidavit in which he admitted neglect in failing to lodge the administrative record. The trial court denied discretionary relief because the plaintiff’s counsel’s mistake – failing to check to see if his assistant actually lodged the administrative record due to his hectic workload – did not rise to the level of excusable neglect. The trial court granted mandatory relief, however, finding that the mistake of plaintiff’s attorney deprived plaintiff of its day in court and explaining that it had ruled on the merits only because it was under the mistaken impression that the incomplete record had been lodged by plaintiff, when in fact it had been lodged by the City.

On appeal, the Second District Court of Appeal held that the trial court erred in granting the mandatory relief. The mandatory relief provision in CCP section 473, subdivision (b) only applies to a default, a default judgment, or a dismissal. In this case, the court found the mandatory relief provision did not apply. Plaintiff failed to present sufficient evidence to meet its burden of proof because it never lodged the administrative record.  The judgement was therefore on the merits and not a default, default judgment, or dismissal.

Key Point:

The Second District Court of Appeal found that the grant of mandatory relief under CCP section 473, subdivision (b) is improper when plaintiff fails to present sufficient evidence and does not meet the burden of proof.

Appellate Court Affirms Discharge of Writ for Lancaster Development

Wednesday, November 5th, 2014

In an unpublished decision in Quartz Hill Cares v. City of Lancaster, 2014 Cal. App. Unpub. LEXIS 7571, the Court of Appeal for the Second District upheld the trial court’s discharge of a writ of mandate challenging an addendum to the Final Environmental Impact Report (FEIR) for a commercial retail development in the City of Lancaster (City).

The court clarified its previously ruling in Quartz Hill Cares v. City of Lancaster (Quartz I), 2012 Cal. App. Unpub. LEXIS 2026, in which the court held the analysis of one project alternative in the FEIR lacked adequate supporting evidence. (For a complete analysis of Quartz I by the Thomas Law Group see our previous blog post: http://www.thomaslaw.com/blog/unpublished-decision-holds-that-a-comparative-analysis-is-required-to-support-the-conclusion-that-an-alternative-is-economically-infeasible/). Following Quartz I, the City adopted an addendum to the FEIR supplying the missing data to support rejecting the project alternative and the trial court discharged the writ. 

Petitioner contended the trial court improperly discharged the writ because Quartz I required decertification of the entire FEIR. The court emphasized that the disposition must be read in conjunction with the opinion as whole. Although one sub-heading of the Quartz I opinion stated “Certification of the FEIR must be reversed[,]” the court held there was no ambiguity in the Quartz I disposition when read as a whole. Quartz I rejected all of petitioner’s challenges except for a narrow portion of the analysis of one alternative. Accordingly, the City was not required to decertify the entire FEIR to comply with the Quartz I decision. 

The court also rejected petitioner’s claim that the deficient portion of the FEIR was not severable from the FEIR. The trial court held that under Public Resources Code section 21168.9, the trial court had flexibility to tailor a remedy to fit the specific CEQA violation. Here, the deficiency was narrow and discrete, so the trial court did not err in finding that one section severable from the remainder of the FEIR.

Finally, the court rejected petitioner’s argument that the trial court erred in failing to require the City to recirculate the revised portion of the FEIR. Because Quartz I did not decertify the entire FEIR, an addendum was proper and circulation for public review was not required.

Appellate Court Upholds Trial Court’s Jurisdiction to Discharge Writ for Huntington Beach Senior Center

Tuesday, August 5th, 2014

In an unpublished decision, Parks Legal Defense Fund v. City of Huntington Beach, (2014) Cal. App. Unpub. LEXIS 5050, the Fourth District Court of Appeal upheld the trial court’s jurisdiction to discharge a writ of mandate, but reversed and remanded the trial court’s determination that the subsequent environmental impact report complied with the California Environmental Quality Act (CEQA), finding this determination outside the limited scope of the writ.

In 2008, Parks Legal Defense Fund (Parks) filed a petition for a writ of mandate challenging the City of Huntington Beach’s certification of an environmental impact report (EIR) for a senior center in a city park.  The trial court issued a writ ordering the City to vacate its approvals and prepare a subsequent EIR to address the suitability of alternative off-site locations and requiring the City to a file a return to the writ.  The appellate court affirmed the trial court’s decision in December 2010, finding that the EIR had multiple flaws.

A second appeal addressing attorney fees was dismissed in April 2011, following the stipulation of the parties in furtherance of a settlement agreement.  Once the trial court vacated the fee award pursuant to the settlement agreement, the City requested that the court close the case.  The trial court declined to relinquish its jurisdiction until the City complied with the appellate court’s decision requiring the City to set aside certification of the EIR and issuance of project approvals. Once the City took the necessary action, the trial court held another status conference in July 2011, during which the court deemed the matter in compliance with the appellate court’s orders and stated that it would take no further action.

In May 2012, Parks filed a new lawsuit; however, the City continued to pursue the original litigation and filed its return to the writ in February of 2013, along with a motion to discharge the writ.  Parks opposed the motion, arguing that the original proceeding was over and the trial court had no further jurisdiction over the matter.  The trial court determined that it had jurisdiction and granted the motion, and also held that the subsequent EIR prepared by the City was in compliance with CEQA in all respects.

On appeal, the court rejected Parks’ claim that the trial court did not have jurisdiction to discharge the charge.  Under Public Resources Code section 21168.9, subdivision (b), the trial court retains jurisdiction over the proceedings until it deems that the public agency has complied with the writ.  While the City had prepared a subsequent EIR and set aside certification of the original EIR, at no point in the case’s procedural history prior to February, 2013 did the City file a return to the writ.  Nor did the trial court dismiss the case.

The appellate court held, however, that the trial court acted outside the scope of its jurisdiction when it issued an order stating that the subsequent EIR complied with CEQA in all respects.  The trial court was limited in its review to the matters included in the writ; however, the language in the trial court’s order finding compliance with CEQA in all respects could be interpreted to mean that the City had complied not only with respect to the issues addressed in the original judgment, but also with respect to every conceivable issue arising under CEQA.  The appellate court found this language overbroad and remanded to the trial court to issue a new order that only discharged the writ.

Finally, the court made a point to observe that Parks repeatedly failed to organize its brief in a coherent manner and neglected to properly support its arguments with citations to the record or legal authority.  The court declined to sort out these muddled arguments and treated them as waived.

Appellate Court Finds No CEQA or Brown Act Violations For Demolition of Buildings by School District

Wednesday, July 23rd, 2014

In an unpublished decision in Civilian Conservation Corps Camp Interest Group v. Valley Center Pauma Unified School District, (2014) Cal. App. Unpub. LEXIS 4760, the Court of Appeal for the Fourth Appellate District, Division One, upheld the trial court’s denial of a writ of mandate seeking to compel Valley Center Pauma Unified School District (the District) to prepare an environmental impact report for the demolition of buildings adjacent to an elementary school.  The court also upheld the trial court’s dismissal of alleged Brown Act violations for purportedly deciding to approve the demolition outside of a public meeting, failing to make certain documents available to the public, and failing to provide adequate notice of a public meeting.

The case stems from the 2011 acquisition by the District of a small parcel of land adjacent to an elementary school in the District.  There were seven Depression-era buildings on the parcel that the District determined were hazardous due to structural issues, lead paint, and asbestos.   Over the objection of Civilian Conservation Corps Camp Interest Group (Petitioner) at a public meeting, the District approved demolition of the buildings and within a few days of approval the buildings were removed except for the foundations and footings.

The court first rejected Petitioner’s claim that the demolition of the buildings violated the California Environmental Quality Act (CEQA).  In Petitioner’s complaint, Petitioner had asserted the project requiring CEQA review was all approvals and work related to the demolition of the buildings.  However, the demolition of the buildings was already complete.  Citing Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, the court held that Petitioner’s CEQA claim was moot because the court was “unable to provide Petitioner with effectual relief and any order would have no practical impact.”

Petitioner argued that the demolition project was not complete because the buildings’ foundations were still in place and further, the demolition should be included in the District’s larger project to build a sports field on the parcel.  However, the court rejected this argument as premature.  The Petitioner had alleged only that the work related to demolition violated CEQA and not the planned sports field project that Petitioner now sought to add.  Also, the foundations were not part of the hazard on the parcel, so the project that Petitioner alleged in the complaint was complete and the alleged CEQA violation was moot.

Next, the court considered the alleged Brown Act violations and held that there were insufficient facts alleged to support the claim.  The Brown Act allows the public to seek an injunction or declaratory relief to stop ongoing violations and prevent threatened future violations.  Plaintiffs must support the alleged ongoing violations or threatened future violations with “competent allegations of fact” demonstrating a pattern or ongoing practice of Brown Act violations.  In this case, Petitioner’s allegations of improper deliberations  by members of the District’s Board of Trustees and a failure to provide certain documents to the public were made purely  on “information and belief” with no supporting facts.  While the Petitioner did sufficiently support the allegation of inadequate notice of the demolition on the Board’s agenda, there was no allegation of a historical pattern of doing so.  The Brown Act was established to stop ongoing violations and prevent future violation; it is not a remedy for past actions.  As a result, the court held that Petitioner had failed to allege adequate facts and did not state a sufficient claim for declaratory or injunctive relief under the Brown Act.

Key Points

CEQA claims in a petition can be moot if there is no practical relief that can be granted.  Brown Act claims must be supported by facts showing a pattern or practice of ongoing violations.